Q1.Labour policy in India

After independence it was largely felt that the labour policy must emphasise upon

self-reliance on the part of the workers. Since independence till 1954, the period

when V.V Giri was the labour Minister, all official pronouncements emphasised

that labour should become self-reliant. An equally forceful view had happen to

prefer reliance upon the Government. This cross-current of approach to the labour

policy gave place to a new approach known as “ Tripartism”. Thus “Tripartism”

became the central theme in the so-called “Nanda-period” that began in 1957.

During this period the government paid reliance on three party approach, namely

the trade union representing the workers, the employers, and the government. In

this kind of approach the representatives do not decide anything but their role is

mainly advisory. They meet together, discuss anything but their role is mainly

advisory. They meet together, discuss the points in dispute and strive to reach a

consensus and if they agree they make recommendations. Out of the three, the role

of the government is more important. Annual labour conference and the permanent

standing labour committees served as the chief instrument of Tripartism. These

conferences advocated amongst many things; worker’s participation in

management workers education works committees, and minimum wage

legislations. At the sixteenth conference held in 1958 a momentous advancements

was made by adopting a Code of Discipline in industry. The code pledged the

parties to avoid strikes and lock-outs without notice, and to eschew unilateral

actions, and to rely on settlement of disputes by discussion by voluntary arbitration

or by adopting to such measures as the law may provide. It also pledged them to

avoid coercion and victimization, to avoid partial strikes and lock-outs, and to

follow grievance procedure.

Tripartism is an approach which lays stress on the identity of interests

between labour and capital i.e., they are the partners in the maintenance of

production and the building up of the national economy. The labour policy has

proceeded on a realization that the community as a whole, as well as individual

employers are under an obligation to protect the welfare of workers and to secure

to them their due share in the gains of economic development. This led to enacting

of the payment of Bonus Act, 1965 which aimed at providing for the payment of

bonus on the basis of profits or on the basis of production or productivity.

The main postulates of labour policy may be summed up as follow

1. Recognition of the State as the custodian of the interests of the community,

as the catalyst of “ change” and welfare programmes.

2. Recognition of the right of workers to peaceful direct action if justice is

denied to them.

3. Encouragement to mutual settlements, collective bargaining and voluntary

arbitration.

4. Intervention by the state in favour of the weaker party to ensure fair

treatment to all concerned.

5. Primary to maintenance of individual peace.

6. Evolving partnership between the employer and employees in a constructive

endeavor to promote the satisfaction of the economic needs of the country in

the best possible manner.

7. Ensuring fair wage standards and provisions of social security.

8. Co-operation for augmenting production and increasing productivity

9. Adequate enforcement of legislation

10. Enhancing the status of the workers in industry.

11. Tripartite consultation.

Q2.The origin and growth of trade union movement in India

Introduction

Trade Union movement of India is of recent origin as compared to other European

countries which had undergone industrial revolution at a comparatively early stage

in their economic development. The history of economic development is, therefore,

somewhat different in the sense that, at no stage did the country undergo an

industrial revolution in the true sense of the term.

Agriculture remains the main occupation of the vast majority of the

population and the industrial workers constitute a microscope minority. Even those

who joined the rank and file of the industrial workers in the initial stags had their

roots in village and village economy. It is no wonder that these rural migrants were

“pushed” not “pulled” to the city due to economic factors such as widespread

famines. They therefore lacked social coherency to organise themselves in an

orderly manner to fight against the evils of the system in which they found

themselves entrapped not of their own choosing but because of the compelling

forces of the time.

The trade Union movement has thus emerged as a result of growing complexities

of economic structure, growth of class consciousness and attainment of common

objectives among the working class. To define the concept of Trade Union is

bound to fail because Trade Union is a complete institution which has may aspects-

economic, psychological, sociological and political. The above characteristics

differ from country to country and therefore, a systematic study requires

adaptability depending on the nature and extent of economic development of a

country coupled with educational background of the working classes. The Trade

Union is essentially a bargaining agent by collective actions by mutual insurance

and therefore collective bargaining, the employer owing to his admittedly superior

bargaining power, can take advantage of the weaker positions of an individual

worker as a result of ignorance and need. The objective of the Trade Unions,

according to Webbs, is to take labour out of the competitive process. Under free

competition consumers sovereignty may result in a competitive reduction of

wages. Trade Unions ward off such unhealthy competition. Even in a proletariat

society the purpose of a Trade Union is to satisfy the economic and cultural

requirements of its member.

The Indian Trade Unions Act, 1926, section 2(h) defines Trade Union as, “ any

combination whether, temporary or permanent, formed primarily for the purpose of

regulating the relations between workmen and employers or between workmen and

workmen or between employers, or for imposing restrictive conditions on the

conduct of any trade or business and includes any federation of two or more trade

unions.

The credit for organized labour movement in India goes to N.M Lokhande who

was a factory worker himself and who in 1884 organised an agitation in Bombay

and called a conference of workers to make representations to the Factory

Commission appointed by the Government to study the conditions of working

classes employed in factories. A memorandum prepared under his stewardship and

presented to the commission demanded limitation of working hours, a weekly rest

day, noon-time recess and compensation for injuries. In response to these demands

a weekly holiday was actually granted by the mill owners of Bombay.

In 1890, the Bombay Mill hand’s Association was organised with Lokhande as

chairmen and workers newspaper Deenabandhu was started. Other associations

which were established during this period were Amalgamated society of Railway

servants of India and Burma (1897), Printers Union (1904), The Bombay postal

Union (1907), The Kamgar Hitwardhak Sabha (1910) and the Press Employees

Union. Although all the above organisations were not Trade Unions in the real

sense of the term but the establishment of the above organisations germinated the

seed of consciousness among the working class to fight for their legitimate rights

by constitutional methods and the leaders were either philanthropists or

intellectuals. However it was not until the close of World War I that the modern

Trade Union movement really took root in india. The period (1918-21) was an

epoch-making period in the history of Indian labour movement. It was during this

period that the working class really awakened to the reality of grim struggle for

existence in the face of rising prices, long working hours and absence of statutory

protection and consequently Trade Unions were formed for achieving the

objections of fighting against the above evils.

India"s first Trade Union, the Madras Labour Union (1918) was founded by P.P

Wadia who was induced to join the labour movement by his sympathy for the

working classes against the European officers who treated harshly the Indians in

the mills.

The union was the first systematic attempt of Trade Union organization with

regular membership dues ad relief fund. So far the movement was confined to the

three principal cities of Bombay, Ahmedabad and Madras where the textile

industry had been established. Trade unionism after 1919 spread to centres other

than these and the unions were formed in the Railways, Iron and Steel industry

besides Textiles.

By the year 1920 the Trade Union had emerged on the Indian scene in

almost all the sectors to protect the legitimate interests of the working classes. It

was also in this year that India’s first central organization of labour, namely, All

India Trade Union Congress was formed to co-ordinate the activities of all labour

organisations and generally to further the significance. The indian labour

movement since the establishment of AITUC remained very close to the national

movement led by Indian National Congress. Well known personalities who were in

the mainstream of the national movement, namely C.R Dass, PT. Moti lal Nehru,

Pt. Jawahar Lal Nehru and Subhash Chandra Bose had presided over the AITUC at

one time or the other. The workmen compensation Act (the first of its Kind) and

finally the Trade Unions Act, 1926 for regulating the affairs of a Trade Union and

which afforded certain protection to the union leaders for legitimate Trade Union

activities.

The year of 1929 was again significant in the sense that a Royal Commission

on Labour in India was appointed to study and report on the Indian labour

conditions.

During the period 1937-39 the Indian National Congress which formed

ministries in 7 out of 11 Provinces on the basis of elections held under the

Government of India Act, 1935, played a prominent role in bringing about the

unity within the framework of AITUC Constitution. The congress ministries

resigned in the provinces as a protect against the unilateral action taken by the

Governer General in declaring war on behalf of India without consulting the

national leaders. The national leaders were arrested and the leadership of AITUC

passed into the hands of communists who were more militant to fight for the cause

of labour. As a matter of fact, the internal factions and groupism became very

strong and various groups seperated from the AITUC and under the influence of

various political parties formed separate central organisations. The Indian National

Trade Union Congress (INTUC) was formed in 1946, which was dominated by

congress leaders who formed this union, the Hind Mazdoor Sabha (HMS) came

into existence in 1948 ostensibly with a view to keeping trade unions free from

domination by government employers and political parties and the United Trade

Union Congress (UTUC) in 1949. The group which established this party claimed

to conduct union activities on the basis of Trade Unions free from sectarian party

politics.

The progress of the trade unionism in india in pre-independence days has not

been very coherent and systematized movement in the real sense of the term but

the post- independence era has witnessed a tremendous growth of the unions in

every sphere of industrial activity.

The Post Independence era and the labour Movement in the Interim

Government established as a result of the efforts of the British Government to give

independence to the Indians in the near-future. The outlook was gloomy, despite

the prospects of freedom because of industrial and economic difficulties, the

natural gifts of a war shattered economy. Immediately after assuming the control of

the government, the national government got enacted the Industrial Disputes Act

1947 embodying many of the restrictive features of war time Defence of India Rule

81 (a). The Trade Unions Act, 1926 was also amended in 1947 and the amended

act provided for compulsory recognition of unions.

It was clear that even the statutory provision of the Industrial Disputes Act,

1947 for setting up works Committees and Industrial Courts prove inadequate to

arrest the problem of strikes and falling production. It was realized that the

problem needed a more positive step of promoting better relations between

employers and employees.

The growing union consciousness amongst the working classes engaged in

various vocations, particularly government servants, and engaged in different crafts

and pursuing various professions has increased to a great extent on the national

level, the All India Railway men Federation, the National Federation of Posts and

Telegraphs Employees, the all India Defence Employees covering almost all the

sections of the departments of the Government of India had been extremely active

to fight for the cause of employees who had been hard hit due to continuous rise in

the prices and consequently cost of living index rising higher and higher in the last

few years.

Similarly, employees of the Banking Industry, Insurance, Electricity,

working journalists, dock workers, teachers, and Airlines employees have shown

greater awareness to form unions and to fight collectively for their demands with

the employers concerning conditions of service and on the issue of bonus, etc.

The compulsory adjudication system is the cornerstone of labour dispute

settlement procedure in India in recent years due to the responsibility imposed

upon the state in directive principles of the state policy of the constitute of India to

usher in an era of the welfare state in India. Compulsory adjudication has come to

stay, and is indeed necessary for protecting weaker unions which are not strong

enough to bargain with the employers. However, collective bargaining has also

simultaneously emerged. Several voluntary agreements have also been arrived at

jointly between representatives of labour management and the government. The

labour policy of the government has undergone a radical change in the recent years

and there has been a consistent endeavor on the part of the government to accord

encouragement to tripartite Indian economy.

There has been tremendous increase in the number of Trade Unions and

their membership in the recent years but the size of the Trade Unions in India has

been decreasing. One of the reason for this tendency is that as trade unionism is

spreading among workers, Trade Unions are being established in smaller plants.

The result is that while the number of unions and unions membership is increasing,

average membership of individual unions is declining. Secondly, inter-union

rivalry and the influence of outsiders among the leaders and the central

organization have resulted in the multiplicity of unions and consequently hampered

rather than encouraged the growth of trade union movement on healthy and

democratic lines. The national commission on labour has not favoured the idea of

legal ban on outsiders in Trade Union but has advocated the view, that the

“outsiders in Trade Unions should be made redundant by forces within rather than

by a legal ban. It has suggested limiting the number of outsiders in a Trade Union

in order to discourage the practice of inducting the outsiders in the Trade Unions in

India.

Q3.Definition of Trade Union:- Trade Union means any combination whether

temporary or permanent, formed primilarly for the purpose of

a) Regulating the relations between

b) Workmen and employers; or

c) Employers and employers; or

For imposing restrictive conditions on the conduct of any trade or business and

includes any federation of two or more unions.

According to Chambers Encyclopedia a trade Union is an association of wage

earners, formed primarily for the purpose of collective action for the forwarding or

defence of its professional interest. Any association of wage earners, therefore

which is formed with the object of catering to the demands of its members by

collective action would be a Trade Union under the above definition.

Similarly an association of which the primary object was to acquire patent rights

though also empowered to regulate output and price was held not to be a Trade

Union. Therefore, the definition contemplates the regulation of relationship in

regard to the conditions of service employees which postulated the existence of an

employer who is engaged in business, trade or industry.

Whatever may be the combination, whether permanent or temporary, if it is formed

for one or the other of the statutory objects, it is a Trade Union within the meaning

of the present Act. It may be an association of non-manual or manual workers.

Thus an association of persons which required registration should be an association

of workmen. In other words, the member of a Trade Union must be Workmen of

the employer engaged in the conduct of any trade or business in a commercial

undertaking. The term ‘workmen’ includes persons employed in trade or industry

with whom the trade dispute arises. The expression workman as defined in the

Trade Unions Act has a wider import than the definition of workman in the

Industrial Disputes Act. The main nature of work must be clerical or non

supervisory of a workman under Industrial Disputes Act whereas the only

requirement under the Trade Unions Act is that a person must be employed in trade

or industry and it makes no distinction between persons holding supervisory and

non supervisory or officer and clerical position.

The Trade Union of Employees of Employees State Insurance corporation can get

registration under the act as employees were held as workmen within the definition

of the act.

A Trade Union registered under the Trade Unions Act, is neither an instrumentality

nor an agency of the state discharging public functions or public duties and thus,

not amenable to the Jurisdiction of the writ under Article 226 of the Constitution.

A question arose whether the persons employed in T.T. Devasthanam, public

religious institution, administrated under the Andhra Pradesh Charitable and Hindu

Religious Institution and Endowment Act of 1966, can register themselves into a

Trade Union under the Act? It was held that through the essential character of

Institution is religious, it has to maintain several departments such as Electricity

and Water Department to cater to the needs of the piligrims. Such department

being industry and the workers working therein “ workmen” therefore such

workers are entitled to register themselves as a Trade Union.

The management of the central Machine Tools Institute, Banglore questioned the

legality of the registration of their employees association as a Trade Union by the

registrar under the Trade Unions Act, 1926 on the ground that the institute was

purely a research and development organization without any profit motive.

Upholding the legality of registration of the Association by the Registrar it was

held in view of the Superme Court’s decision in Banglore water supply and

sewerage Board’s case the management can no longer contend that it is not an

industry and as such registration is valid and legal.

Q4.IMMUNITY OF MEMBERS OF TRADE UNION FROM CIVIL AND

CRIMINAL LIABILITY

The Trade Unions Act, 1926 was enacted to afford certain immunities to trade

union leaders to carry out the legitimate Trade Union activities without fear of civil

or criminal action in the court of law. Invariably a Trade Union wilfully interferes

with the business of the employer, as for example, by resorting to strikes or other

forms of protest causing financial injury to an employer. Such interference was

held actionable in England up to 1906 and up to 1926 in India. In the Quinn and

TaffVale cases in England and in the Buckingham and Carnatic Mills case in India,

the unions were held liable for illegal conspiracies and the employers were

awarded damages. Dissatisfaction in England with the decision of Toff Vale

decision led to the passage of the Trade Disputes Act, 1906 which nullified the

case and afforded protection to Trade Unions in matters concerned with legitimate

trade union activities and the decision of the Buckingham and Carnatic Mills was

nullified by the Trade Unions Act, 1926. Sections 17, 18 and 19 of the Act deal

with the immunities available to the Trade Unions with regard to criminal and civil

proceedings including immunities in the law of Torts for acts committed by them

connected with union activities. The Trade Unions Act of 1926 is based to a great

extent on the English Act which immunizes registered Trade Unions, officers and

members thereof from liability for acts done in furtherance of dispute inducing a

breach of contract of employment. It also immunizes a registered Trade Union

from the consequences of criminal conspiracies tortuous acts to a registered Trade

Union, its office bearers and members, of the offence of deliberately bringing

about a breach of contract. Similarly, a union is protected from being" sued

for the offence of inducing a person for breachof contract of employment or

interfering with the trade, business or employment of some other person provided

such inducement is in contemplation or in furtherance of a trade dispute. But

inducement, procurement or interference must be by lawful means and not by

means which would be illegal or wrongful by other provisions of law. It is to be

noted that the protection does not extend to inducements to break contracts other

than contract of employment, e.g., contract for sale or purchase of goods nor does

it give protection against libel actions.

Section 18, sub-clause (1) states,"No suit or other legal proceeding shall be

maintainable in any civil court against any registered Trade Union or any office

bearer or member thereof in respect of any act done in contemplation or

furtherance of a trade dispute to which a member of the Trade Union is a party on

the ground only that such act induces some other person to break a contract of

employment, or that it is an interference with the trade, business or employment of

some other person or with the right of some other person to dispose of his capital

or his labour as he wills."

It is clear from the above provision that if the inducement to break a contract of

employment is without threat or violence then this is not actionable provided it was

done in contemplation or furtherance of a trade dispute. Similarly, if there be no

threat or violence and no breach of contract and yet there is an interference with

the trade, business or employment of some other person or with the right of some

other person to dispose of his capital or his labour as he wills, it will not be

actionable provided that it was done in contemplation or furtherance of trade

dispute. In such cases there is no question whether there was sufficient justification

or not..

The immunity from civil action has been extended to the Trade Unions for acts

done by office bearers and members of a registered trade union only if done in-

contemplation or in furtheraace of a trade dispute in the general interest of the

working class who are permitted legally to organize themselves into Trade Unions.

A concerted movement by workmen by gathering together either outside the

industrial establishment or inside within working hours is permissible and no

liability accrues, when it is peaceful and does not violate the provisions of the law.

B when such a gathering is unlawful or commits an offence, the exemption is lost.3

Therefore, inducement or procurement of breaches of contract of employment or

interference with business must be by lawful means.

In Rama Vilas Service Ltd. v. Simpson and Group Companies Workers Union,4 the

scope of Section 18 of the Act and the scope of interference in permitting the

management or its customers to remove the manufactured goods, without the aid of

labour, during strike period was the point in issue. The Counsel for the Union gave

an assurance that the Union and its members would not prevent the management,

their managerial staff and officers and any person or persons desirous of entering

or leaving the concerns of the plaintiffs' companies and that they would not hold

out threats.

Intimidation or indulging in gherao or wrongful confinement of the officers or the

managerial staff or other members of the public in premises of the plaintiff

companies would not be resorted to by the Union.

In view of the above assurance it was held that immunity under section 18 can be

claimed for other acts also by the Union. Sub-section (2) further provides :

"A registered Trade Union shall not be liable in any suit or other legal proceeding

in any civil court in respect of any tortuous act done in contemplation or

furtherance of a trade dispute by an agent of the Trade Union if it is proved that

such person acted without the knowledge of, or contrary to express instructions

given by the executive of the Trade Union.

This provision extends protection to an agent of the Trade Union from tortuous

liability if the acts are done by him in contemplation or in furtherance of trade

dispute of procuring a breach of contract. The breach must be a contract of

employment. There must be no unlawful act like defamation, physical violence,

etc. In the case of Rohtas Industries Staff Union v. State of bihar the question

before the Patna High Court was whether the employers have any right to claim

damages against the employees participating in an illegal strike and thereby

causing loss of production and business? It was held that even though strike may

be illegal under section 14 of the Industrial Dispute Act, 1947 still workers are

entitled to the immunity under Section 18 of the Trade Unions Act, 1926. Legality

or illegality of the strike has no bearing on the question of immunity furnished

under this section. Similarly, it was held in Reserve Bank of India v. Ashis Kusum,3

that in order to secure immunity from civil liability under Section 18, inducement

or procurement of breach of contract of employment in furtherance of a trade

dispute must be by lawful means and not by means which would be illegal or

wrong by other provisions of the law.

An interesting case of its own type arose in the case of Western India Cine

Employees v. Filmalaya (P) Ltd., where the question for consideration of the High

Court was whether collective action taken by the workers to abstain from work at

the call of the Union causing loss to the employer is protected under Section 18 (2)

of the Act? The brief facts in this case were that the Union made various demands

on behalf of 19 workers alleging that these workers were in the employment of the

Filmalaya Pvt. Ltd., and they were shown as temporary employees of other sister

concerns. The Federation issued a letter to various bodies and associations of the

cine artists, technicians and workers requiring them to issue directions to their

members not to report for shooting work at the studio of the plaintiff, viz.

Filmalaya Pvt. Ltd., which resulted in the stand-still of their work. The plaintiffs

applied, amongst other reliefs, for the grant of injunction restraining the Trade

Union from carrying out such activities. The High Court on appeal held that the

trial was wrong in coming to the conclusion that no trade dispute_existed.

Further, the Court observed "..the Union by issuing directions to its own members

not to co-operate with the employer, no intimidation or coercion is caused which

will result in denying them freedom of choice by any unlawful and violent means

the acts of the Trade Union causing abusive language towards employers, their

staff and their visitors are subject to other laws of the land. A Trade Union is

entitled to carry out its legitimate trade union activities peacefully and, therefore,

per se slogan shouting or demonstrations cannot be termed as unlawful and blanket

injunction cannot be granted."

It can be said that what actions are covered by section 18 (2) of the Act depend

upon the facts and situations in each case.

Enforceability of Agreements.—Under the provisions of Section 27 of the Indian

Contract Act an agreement in restraint of trade is void because it is opposed to and

in violation of public policy. The public have an interest in every person carrying

on his trade or business freely. Therefore, all restraints on individuals to trade are

declared void on the ground of public policy. Section 19 of the Trade Unions Act

has provided immunity to Trade Unions from the above provisions of the Indian

Contract Act by preventing civil courts from entertaining any legal proceedings

against the Trade Union for enforcing any agreement or recovering damages for

breach of any agreement between members of Trade Union concerning the

conditions on which any member of a Trade Union shall or shall not sell their

goods, transact business, work, employ or be employed. The proviso to the section

, mentions expressly the bar on civil courts to entertain suit for enforcing a contract

or claiming damages for a breach. Therefore, what the section has protected is the

right to recover damages for breach of an agreement only. The courts can judge the

validity without enforcing an agreement or give a declaration without

consequential relief. These provisions relate to registered Trade Unions only.

Agreements made between members of an unregistered lawful Trade Union are

enforceable so long as they conform to the general principles of the law of

contract.

Immunity from Criminal liability

The Trade Unions a Duties and powers of Certifying Officer.—The Certifying

Officer as well as the appellate authority is vested with the power to see that the

Draft Standing Orders prepared by the employer are certifiable. The compulsion of

the statute is that the Standing Orders shall make provision for such of the matters

as set out in the Schedule with the additional matters prescribed by the

Government as are applicable to the industrial establishment in question. If any of

the matters set out in the Schedule are applicable to the industrial establishment in

question, the employer is bound to make provision for them. The appropriate

government is also given the discretion, having regard to the special conditions of

the industries within its jurisdiction to add further matters to the list contained in

the Schedule. The amended section 4 has entrusted the authorities with duty to

adjudicate upon fairness and reasonableness of Standing Orders. Enquiry when

such Standing Orders are submitted for certification is now two-fold ; (i) Whether

Standing Orders are in conformity with Model Standing Orders; and (ii) Whether

they are fair and reasonable.2 The Certifying Officer, therefore, has to see before

certifying the Draft Standing Orders that the conditions of section 4 are satisfied.3

The question as to fairness and reasonableness of the modification has been left by

legislature to the authorities under the Act and the Supreme Court would not be

justified in interfering with the conclusion of authorities under the Act unless an

important principle of industrial law requiring elucidations is involved. The right

vests in the certifying and appellate authority to adjudicate upon the fairness or

reasonableness of the provisions of the Standing Orders submitted for certification

under the amendment made in Section 4 and Section 10 in the year 1955. This

means that the jurisdiction of the appropriate authorities functioning under the Act

has now been widened and they are required to consider whether the Standing

Orders submitted to them for certification are fair and reasonable. Where

modification of Standing Orders requires giving of reasons, in case of discharge of

workman simpliciter was made, the modification was considered fair and

reasonable and the Supreme Court refused to interfere under Article 136 of the

Constitution.

Besides, testifying reasonableness the certifying and appellate authority are

required to insist upon that the Standing Orders conform to the Model Standing

Orders, unless the employer can satisfy them that it is not practicable for him to do

so. It does not mean that the Draft Standing, 1926 gives immunity to registered

Trade Union certain circumstances, from prosecution for criminal conspiracy.

Under the existing criminal law an agreement to do an illegal act is itself a criminal

offence. Illegal act includes all acts which provide grounds for civil actions. Thus,

for example, two men who agree to persuade workmen to break their contracts

with their employers are guilty of criminal conspiracy. Section 17 of the Act

protects trade unionists from criminal conspiracy where the agreement into which

they have entered is not an agreement to commit an offence. It is provided in the

Act that no officer or member of a registered Trade Union is liable to be punished

for criminal conspiracy in respect of any agreement made between the members

for the furtherance of any object on which the general funds of a Trade Union can

be spent. The Act confers immunity from liability in case of criminal conspiracy

under section 120-B of the IPC committed by an office bearer or member of

registered Trade Union. The Trade Union has a right to declare and to do certain

acts in furtherance of trade disputes. They are not liable criminally for such acts or

civilly for conspiracy in furtherance of such acts as Section 17 permits such acts to

be done but there is nothing in the Act which apart from immunity from criminal

conspiracy allows immunity from criminal offences. The immunity does not

extend to an agreement to commit an offence or intimidation, molestation, or

violence amounting to an offence. Peaceful strike or gathering is permitted. But

when it resorts to unlawful confinement of person, criminal trespass or there is

indulgence in criminal force or criminal assault or mischief to person or property,

there is no exemption from liability.1 Neither of the sections, namely, 17 and 18 of

Trade Unions Act, 1926 gives immunity to office bearers and members to commit

an offence or for deliberate trespass. C.J. Sinha in Jay Engineering Works v. Staff,2

while dealing with the scope of Sections 17 and 18 observed :

Sections 17 and 18 of the Indian Trade Unions Act grant certain

exemptions to members of a Trade Union, but there is no exemption against either

an agreement to commit an offence or intimidation, molestation or violence, where

they amount to an offence. Members of a Trade Union may resort to peaceful

strike, that is to say, cessation of work with the common object of enforcing their

claims. Such strikes must be peaceful and not violent and there is no exemption

when an offence is committed. Therefore, a concerted movement by workmen by

gathering together either outside the industrial establishment or inside, within the

working hours is permissible when it is peaceful and does not violate the

provisions of law. But when such a gathering is unlawful or commits an offence

then the exemption is lost. Thus, where it resorts to confinement of persons,

criminal trespass or where it becomes violent and indulges in criminal force or

criminal assault or mischief to person or property or molestation or intimidation,

the exemption can no longer be claimed. "The offence under Section 7 of the

Criminal Law (Amendment) Act, 1932 which prohibits obstructing and use of

violence or intimidations and loitering and persistently following and other acts

mentioned therein, if done with intent to cause any person to abstain from doing, or

to do any act which such person has a right to do or abstain from doing, is an

offence mentioned in Section 17 of the Act. There is no immunity if the act falls

within the scope of the above Section of the Act of 1932.

Duties and powers of Certifying Officer.—The Certifying Officer as well as the

appellate authority is vested with the power to see that the Draft Standing Orders

prepared by the employer are certifiable. The compulsion of the statute is that the

Standing Orders shall make provision for such of the matters as set out in the

Schedule with the additional matters prescribed by the Government as are

applicable to the industrial establishment in question. If any of the matters set out

in the Schedule are applicable to the industrial establishment in question, the

employer is bound to make provision for them. The appropriate government is also

given the discretion, having regard to the special conditions of the industries within

its jurisdiction to add further matters to the list contained in the Schedule. The

amended section 4 has entrusted the authorities with duty to adjudicate upon

fairness and reasonableness of Standing Orders. Enquiry when such Standing

Orders are submitted for certification is now two-fold ; (i) Whether Standing

Orders are in conformity with Model Standing Orders; and (ii) Whether they are

fair and reasonable. The Certifying Officer, therefore, has to see before certifying

the Draft Standing Orders that the conditions of section 4 are satisfied.

said that draft is in conformity with the provision of the lodel Standing Orders.1

Departure in this respect should be well reasoned and satisfying to the Certifying

Officer. If no Model Standing Orders have been set by the appropriate government,

in that case, the Certifying Officer 3 to see that Draft Standing Order contains

provisions for every matter set in the Schedule applicable to industrial

establishment. The Act does not prohibit inclusion of matters not mentioned in the

Act. What the Act requires is the minimum to be provided for in a Standing Order

framed index the Act and if such a minimum has been provided for and if found

reasonable then the Certifying Officer is bound to certify them.

But where the topics to be included in the Standing Orders of a company do not

fall under any of the items of the Schedule to the Act, the extension of the orders to

such topics would be entirely without jurisdiction such Standing Orders,

therefore, cannot be framed.

With regard to the powers of the Certifying Officer to modify the Draft Standing

Orders submitted for certification, the Supreme Court held in Associated Cement

Co. v. P.D. Vyas that the Certifying Officer has to be satisfied that the Draft

Standing Orders deal with every matter set out in the Schedule and are otherwise in

conformity with the provisions of the Act. In the case of Rohtak and Hissar

Districts Electric Supply Co. Ltd. v. state of U.P. , the Supreme Court held that the

employer cannot insist upon tiding a condition to the Standing Order which relates

to the matter which s not included in the Schedule. The power is given to the

Certifying Officer to certify the draft Standing Orders with or without

modifications. It is none of his functions to suggest how the parties will govern

their relations outside the ambit of the Standing Orders that he has certified. The

main purpose of framing Standing Orders as provided in the Act is to bring about

minority with regard to conditions of service of the workmen working in industrial

establishment covered under the provisions of the Act. Matters like suspension and

dismissal are necessarily to be provided in the Standing orders.

Most of the disputes in the industrial establishment arise out of the v'augeness of

the terms and conditions according to which the workmen are employed. The

Standing Orders form part of the contract between the management and everyone

of its employees. It is because of this that Standing Orders after certification bind

all employees presently employed as well as those employed thereafter. The object

of the Act is to have uniform Standing Orders providing for the matters in the

Schedule, it was not intended that there should be different conditions of service

for those who are employed before and those employed after the Standing Orders

came into force. Therefore, the Standing Orders of an establishment when certified

by the Certifying Officer become the terms and conditions of service between the

employer and his employees. The mere fact that the Certifying Officer has been

authorised to amend and modify them does not render them non-statutory for the

provision and procedure for their amendment it is laid down in the Act itself.

Further, the same industrial establishment is not allowed to have two sets of

Standing Orders certified; one relating to persons already in employment of the

establishment and other applying to future entrants in service.

Certification of Standing Orders.—The procedure which a Certifying Officer has

to follow before certifying the Draft Standing Orders is laid down in Section 5 of

the Act. When the Draft Standing Orders are received by the Certifying Officers

from the employer, he shall forward a copy of the said Draft to the Trade Union

and if there is no Trade Union existing, then to the workmen concerned in such

manner as may be prescribed by the rules framed under the Act. The Certifying

Officer shall also send the copy of the Draft together with a notice to the Trade

Union or the workmen concerned, requiring them to file objections if any to the

Draft Standing Orders. The Trade Union or the workmen are required to file the

objections before the Certifying Officer, within 15 days from the receipt of notice.

Before deciding whether or not any modification or additions are to be made to the

Draft Standing Orders, the Certifying Officer shall give the employer, the Trade

Union or the representatives of the workmen an opportunity of being heard. After

giving the opportunity of hearing the parties concerned, he shall decide whether or

not any modification or addition to the Draft is necessary to render the draft

certifiable under the Act and shall make an order in writing to that effect.

The emphasis is laid down in the Act to conform to the procedure for certification

of Draft Standing Orders submitted for certification to the Certifying Officer. The

manner in which the Standing Orders are framed and certified suggests, that the

Standing Orders when certified will be binding on the employees presently

employed as well as employed thereafter. Therefore, in deciding whether the Draft

Standing Orders submitted by the employer are certifiable under the Act, the duty

of the certifying authority and of the appellate authority is not to substitute the

Model Standing Orders for the draft but to see whether they are in conformity with

the Model Standing Orders.